Dismissed

Chithumma Kunjumuhammed v. the District Collector, Ernakulam

Kerala HC4 Oct 2010WA/1494/2010

Case brief

AI extract

What is this about?

This writ appeal against the dismissal of a petition seeking eviction of an encroacher from government land was dismissed at the admission stage. The Court held that the appellant's grievance was purely private under Section 5 of the Kerala Land Conservancy Act and that the Court cannot compel eviction at the instance of a person with fancied private rights.

What did the court decide?

The appellant's plea to evict the encroacher from government land was dismissed at the admission stage.

Chithumma Kunjumuhammed Vs the District Collector, Ernakulam — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932

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WA.No. 1494 of 2010

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-----------------------AGAINST JUDGMENT IN WP(C) 24844/2010 DATED 10.8.2010

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APPELLANT/PETITIONER

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CHITHUMMA KUNJUMUHAMMED, AGED 55, W/O KUNJUMUHAMMED, ELAVAKKATT HOUSE, SOUTH VAZHAKULAM P.O., EZHIPRAM KARA, ERNAKULAM.

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BY ADV. SRI.K.R.VINOD

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RESPONDENTS/RESPONDENTS

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THE DISTRICT COLLECTOR, ERNAKULADM, O/O DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682030.

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THE ASSISTANT EXECUTIVE ENGINEER, PERIYAR VALLEY IRRIGATION PROJECT, SOUTH VAZHAKKULAM, ERNAKULAM-686670.

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THE VILLAGE OFFICER, VAZHAKKULAM VILLAGE, SOUTH VAZHAKKULAM, ERNAKULAM-686670.

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THE TAHSILDAR, KUNNATHUNADU TALUK, TALUK OFFICE, KUNNATHUNADU-683542.

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STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT,THIRUVANANTHAPURAM-695001

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KODUMKALLI, AGED 50, VAZHAKKULAM SOUTH, EZHIPRAM KARA, ERNAKULAM-686670.

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R1 TO R5 BY SR.GOVERNMENT PLEADER SMT.K.MEERA

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.

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W.A. No. 1494 of 2010

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-----------------------------------------Dated this the 4^th day of October, 2010

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JUDGMENT

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J.Chelameswar, C.J.

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Aggrieved by judgment dated 10^th August, 2010 in W.P.

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The appellant herein filed the abovementioned writ petition praying in substance that the 6^th respondent in the writ petition be evicted from a particular piece of land which according

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to the appellant is a government puramboke land.

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The case of the appellant is that the property in dispute

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came to be occupied by the 6^th respondent and the 6^th respondent is making some construction in the said property which if accomplished would adversely affect the appearance of the appellant's property.

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By the judgment under appeal, a learned Judge of this

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W.A.No.1494 of 2010

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Court held that the grievance such as the one made by the appellant is a grievance in the nature of espousing public interest and therefore dismissed the writ petition without prejudice to the right of the appellant to file a public interest litigation. Hence the present appeal.

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We, while agreeing with the conclusion reached by the learned Judge that the writ petition is liable to be dismissed, do not agree with the reason given by the learned Judge that the grievance is in the nature of a public interest. The grievance of the writ petitioner is purely private without any enforceable legal right. The fact that the construction of the 6^th respondent is likely to affect the building of the appellant in our opinion does not entitle the appellant for any remedy known to private law, at any rate nothing is brought to our notice. That being the state of affairs, the appellant seeks to project her private grievance by purporting to espouse a public interest on the ground that under Section 5 of the Kerala Land Conservancy Act, 1957 encroachment of government property is not permissible and therefore the official respondents are under an obligation to evict the 6^th respondent.

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W.A.No.1494 of 2010

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Section 5of the Kerala Land Conservancy Act does

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not create an absolute embargo on the occupation of government land. It only declares that occupation without prior approval of the Government is not permissible. In other words, the occupation per se is not prohibited. In the circumstances, whether to evict an encroacher from a government land or not is a matter to be decided by the Government depending upon the nature of the circumstances.

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This Court in exercise of the jurisdiction under Article 226 of the Constitution of India cannot compel the State to evict an encroacher at the instance of a person whose fancied private rights are affected.

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We see no merit in the appeal. The writ appeal is dismissed at the admission stage.

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J.Chelameswar, Chief Justice

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P.R.Ramachandra Menon, Judge

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vns

Chithumma Kunjumuhammed v. the District Collector, Ernakulam

Case brief

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Chithumma Kunjumuhammed v. the District Collector, Ernakulam

Case brief

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